Why It's Easier For Army To Take Over Land In J&K

29 Jul 2020 6 min read  Share

A 50-year-old act is amended, a 49-year-old circular is withdrawn, and the army and paramilitary forces can now mark any property or area in J&K as “strategic” and take it over without any local government permissions and ignoring civilian objections.

A panoramic view of Srinagar/WIKIMEDIA COMMONS

Updated: Jul 31, 2020

Srinagar: Eight days after the government said political parties were “deliberately misleading” people, and a tweak to the Jammu and Kashmir Development Act, 1970, had nothing to do with the easy transfer of land to armed forces, it scrapped a 49-year rule that required local go-ahead to acquire land.

The army, paramilitary forces and “similar organisation” can now identify any area in Jammu and Kashmir (J&K) as “strategic” and take it over, ignoring possible objections from civilian authorities.

The two-step process began on 18 July 2020—when the J&K Administrative Council amended the Development Act, to allow the notification of “strategic areas” for the armed forces—and culminated on 27 July when a nearly half a century old circular requiring local assent was withdrawn.

A statement from the Department of Information & Public Relation (DIPR) on 18 July said the amendment was meant “to provide for special dispensation for carrying out construction activities in strategic areas”.

Outrage was immediate, and a day later, the government said political parties had got it wrong and the amendments were not connected with land transfers to the armed forces.

“A few political parties are deliberately misleading people as if the land is being transferred to the Armed Forces and the entire J&K is being turned into a military establishment,” the government said in a statement. “All these are baseless comments being made without reading facts. The decision has nothing to do with the transfer of any land to the armed forces.”

The government claimed that the transfer, both acquisition and requisitions, continued to be governed by the existing law.

Eight days later, on 27 July, the J&K revenue department withdrew a 1971 circular that said the armed forces could not acquire land in J&K without a “no-objection certificate”.

Bipul Pathak, principal secretary to J&K Lieutenant Governor Girish Chandra Murmu and government spokesperson Rohit Kansal did not answer text messages from Article 14 requesting comment on the turnaround. If and when they respond, we will update this story.

Political parties said it was hard to believe government statements, pointing to a clarification issued by the government just before it announced its 5 August 2019 decision to scrap Articles 370 and 35-A, the constitutional provisions that bound the former state to India after independence.

“Even the day before 5 August 2019, the governor said all apprehensions (about revocation of article 370) were ill-founded,” PDP’s Naeem Akthar told Article 14 [On 31 July 2019, then governor Satya Pal Malik had said: “A lot of rumours are spread here. Do not pay any heed to them. Everything is fine, everything is normal”].

“Kashmiris have every reason not to believe the claims of this administration.”

Before the abrogation of Article 370, the army and paramilitary forces needed a clearance certificate from the government of the erstwhile state to take over land. Similarly, they needed permission from civilian authorities for construction within camps.

The 27 July order (see below) says there is no need for a home department “no-objection certificate” for land “acquisition/requisition...in favour of Army/BSF/CRPF and similar organisations".

The 27 July circular scrapped a 49-year rule that required local go-ahead to acquire land.

Articles 370 and 35-A had granted semi-autonomous status to the state of J&K, allowing a separate constitution and state flag, the power to legislate in all matters except finance, defence, foreign affairs and communications; and guarantee property rights to residents.

On 18 July, the administration also approved a new housing policy that aims to promote public-private-partnerships for affordable housing, slum rehabilitation projects and integrated/special townships and build 100,000 homes over the next five years.

Widespread Disquiet, Opposition To Amended Law

As word spread across the Kashmir valley that armed forces in the newly created union territory (UT) could freely take over land, local politicians expressed concern that the move would further undermine civilian rights in one of the world’s most militarised areas.

Although the government didn’t make the 18 July order and housing policy public, mainstream politicians and the public expressed strong opposition to the amendments.

The valley’s oldest regional Party, the Jammu and Kashmir National Conference (NC) said the changes in the law were aimed at transforming J&K into a “military establishment”, undermining civilian authority.

Party spokesperson Imran Nabi Dar said that former Chief Minister Mehbooba Mufti in the Legislative Assembly in January 2018 had maintained that thousands of hectares of Kashmir’s land was already controlled by the army and other security forces. 

Dar said the latest move should not be seen in isolation. “It is part of a long-term agenda of disenfranchising the people of J&K by grabbing their fertile, and economically viable land tracts, and natural resources,” he said.

Mufti had informed the state legislative assembly that more than 21,400 hectares (428000 kanals) of land was under unauthorised occupation of the army and other government forces in J&K.

The strategic importance of J&K is not confined to certain areas, “as such the entire region is strategically important,” the NC spokesperson said.  

“So by that analogy, the government will have a free hand to give as much land to security forces to be used by the latter for any means, which the proposed amendment is ambiguous about,” said Dar. “It seems the idea behind such a move is to create an army establishment in J&K.”

People Democratic Party (PDP) leader Naeem Akthar told Article 14 that the amendment looked like a part of the broader plan to change the “demographic map” of the UT. 

On 15 March, Jammu & Kashmir Apni Party chief Altaf Bukhari told Hindustan Times after meeting Prime Minister Narendra Modi and Home Minister Amit Shah: “There is no question of anyone snatching away our lands or jobs.”

‘Will Existing Laws Be Superceded?’

Sheikh Showkat Hussain, a Kashmiri political analyst and law scholar, interpreted the amendment as allowing certain areas to be declared as strategic, “so instead of civil administration, it will be the army authorities that will regulate constructions over there”. 

Hussain said the amendment was one more step towards the goal of settling non-locals in Jammu and Kashmir. Since 1 April, when the government notified the new domicile law, 25,000 people have received domicile certificates.

“When Home minister Amit Shah introduced the bill regarding the revocation of Article 370 in the Indian parliament, he made it clear that they intend to allow people to settle in J&K and for that purpose they have scrapped the article 370,” Hussain told Article 14.

Hussain said that the BJP government may restore the J&K’s statehood at some point, but defence authorities will be involved in the process to settle non-locals in so-called strategic areas. “So, it will be an avenue for the rehabilitation of outsiders in J&K,” he said.

Human rights lawyer and civil rights activist Parvez Imroz said that most prime land in J&K had already been occupied by the army, and land was scarce.  

Imroz said before 5 August any civil authority was in a position to take the Army to court. Now the situation has changed, he said, referring to the Sonamarg Development Authority (SDA), which in 2017 objected when the army said it wanted to construct permanent buildings at Sonamarg, a resort town in central Kashmir. The SDA lost that battle in 2019.

“I have apprehensions that the Army will create more cantonment areas where there will be less interference of civil administration and more of Army,” said Imroz.

Khurram Parvez, a prominent Kashmiri human rights activist and Program Coordinator of the Jammu Kashmir Coalition of Civil Society (JKCCS) said the army could declare any area as strategic, even forest lands currently governed by the Forest Rights Act, 2006.

Human rights groups said the army had occupied many forest areas in the Kashmir valley. J&K has given up 243 hectares of forest land for army and paramilitary use post abrogation of Article 370, Scroll.in reported on 16 December 2019.

“The point is that this rule can’t supersede existing laws like the Forest Rights Act, Wildlife Protection Act (1970) and property rights,” said Parvez. “By virtue of its declaration as a strategic area, will my property rights be seized? There is no law that allows anyone to seize property.” 

The Sonamarg Experience

The word “strategic” appeared on official documents last year, when the J&K High Court on 5 July 2019, a month before the Centre read down the special status of the erstwhile state, permitted the army to construct a Transit Camp at Sonamarg, the ecological fragile golden meadow in Ganderbal district. 

The SDA, which regulates construction and ensures the protection of the ecologically sensitive area, had opposed construction.

 “We produced facts that we can’t allow the construction as under the master plan this area falls under tourism and we cannot allow it,” a top SDA official told Article 14. He requested anonymity, as he is not authorised to speak to the media.

The army then moved the Srinagar High Court, which directed the matter to the Chief Secretary who decided to change land use and declare it a “strategic area” for military purposes. With the new rules, this entire process will no longer be necessary.

The SDA official said it was then that the Centre wrote a letter to the government of J&K, informing them that some areas in the former state would have to be declared as strategic.

(Auqib Javeed is a Srinagar-based journalist.)